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[2001] WASCA 349
Court of Appeal (WA)
2001-11-08
Mr P, Hasluck J
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : CHINNERY -v- HANSEN [2001] WASCA 349
Criminal law - Justices Act - Sentencing - Driving while disqualified - Whether suspended sentence of imprisonment appropriate
Justices Act 1902, s 186(1)(b), s 196, s 199
Calway v Wiebe, unreported; SCt of WA; Library No 990001; 13 January 1999
House v The King [1936] HCA 40; (1936) 55 CLR 499
Jennings v Carson & Anor, unreported SCt of WA; Library No 980608; 21 October 1998
Krakouer v Durka, unreported; SCt of WA; Library No 980595; 14 October 1998
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
O'Brien v Ritchie, unreported; SCt of WA; Library No 990123; 17 March 1999
R v Tait & Anor (1979) 46 FLR 386
Reynolds v Wilkinson (1948) 51 WALR 17
White v Lambrecht, unreported; SCt of WA; Library No 8691; 29 January 1991
1 HASLUCK J: This is an appeal against sentence. The question is whether the sentencing Magistrate erred in imposing a term of immediate imprisonment in respect of an offence of driving whilst legally disentitled to hold a driver's licence.
2 The appellant, Simone Lyn Chinnery, was charged that 27 June 2001 at Cooloongup she drove a motor vehicle without being the holder of the appropriate valid driver's licence for that class of vehicle and whilst legally disentitled to hold a driver's licence contrary to s 49(1)(a) and s 49(2) of the Road Traffic Act 1974.
3 Section 5(1)(1a) of the Road Traffic Act allows for abbreviations to be used in describing penalties for offences. In that regard "PU" stands for penalty units and a reference to a number of PU is a reference to an amount in dollars, that is, that number multiplied by 50.
4 Section 49(1)(a) of the Act provides that every person who drives a motor vehicle of a class for which he is not the holder of the appropriate valid driver's licence commits an offence.
5 Section 49(2)(a)(iv) provides that where a person, having been disqualified from holding or obtaining a driver's licence under a licence suspension order made under s 19 or s 43 of the Fines Penalties and Infringement Notices Enforcement Act 1994, drives, while still legally disentitled to hold a driver's licence, he commits an offence against subs (1)(a).
6 Section 49(3)(b) provides that a person convicted of an offence committed in the circumstances referred to in subs (2)(a)(iv) is liable for a subsequent offence to a fine of not less 4 PU ($200) or more than 30 PU ($1,500) and imprisonment for not more than 12 months.
7 When the appellant appeared before the learned Magistrate in the Rockingham Court of Petty Sessions on 17 July 2001, she was unrepresented. When she was asked if she wanted representation, she declined, although she was not informed by the learned Magistrate that the prospect of a term of imprisonment was a possible outcome of the proceedings. It was against that background that the Magistrate read the charge and asked the appellant to plead. The appellant entered a plea of guilty.
8 The statement of material facts presented to the court by the prosecutor indicated that the appellant had been stopped in Cooloongup by police on 27 June 2001 while driving a motor vehicle. It was ascertained that she was not the holder the an appropriate valid driver's licence for the class of vehicle being driven by reason of the fact that her licence had been suspended on 23 April 1998 for non-payment of fines and at the time of being stopped those fines had not been paid. The charge to which the appellant had just pleaded guilty was described as the sixth offence of driving whilst under suspension. The prosecutor confirmed to the learned Magistrate that on 20 February 2001 at Mandurah the appellant was "fined $200.00 for a fifth offence."
9 The learned Magistrate handed the appellant a copy of the record and asked her what it was. The appellant appeared to be disconcerted by this, but in the course of exchanges with the bench conceded that her record was not good. At that point, the learned Magistrate inquired of the appellant again, but without any reference to the possibility of imprisonment, as to whether she had been warned of the penalties in the past. The transcript suggests that there was no audible response to this inquiry. The learned Magistrate said:
"I'll get a pre-sentence report but quite frankly with this record I have to look at imprisonment."
10 The appellant was then remanded in custody for a pre-sentence report.
11 The learned Magistrate was informed later in the day, in the course of a brief oral pre-sentence report, that the appellant was 33 years of age. She was married in April this year after a 7 year de facto relationship. She had an 18 year old child living independently and a 3 year child at home. All previous no licence offences had been dealt with by way of fines. The appellant's health was generally good but she suffered from hypoglycaemia. The learned Magistrate was also told that there did not appear to be any underlying issues "that will warrant intervention by the Ministry of Justice and the recommendation would be a possible suspended imprisonment".
12 I digress briefly to note that upon the hearing of the appeal before me, counsel for the appellant, in his written submissions, described the appellant's record of convictions for driving without an appropriate valid motor driver's licence as follows:
"Perth Court of Petty Sessions - 19th July 1991
No motor drivers licence - $20:00 fine
Perth Court of Petty Sessions - 24th January 1992
No motor drivers licence while under suspension - disqualification for 9 months and a $200.00 fine.
Perth Court of Petty Sessions - 5th January 1994
No motor drivers licence - $100.00 fine
Perth Court of Petty Sessions - 9th February 1994
No motor drivers licence while under suspension -
9 months disqualification and an $800.00 fine.
Perth Court of Petty Sessions - 5th April 1994
No motor drivers licence while under suspension -
12 months disqualification and an $800.00 fine.
Kellerberrin Court of Petty Sessions - 9th December 1997
No motor drivers licence while under fines suspension -
2 years disqualification and a $1,000.00 fine.
Mandurah Court of Petty Sessions - 20th February 2001
No motor drivers licence while under fines suspension - $200.00 fine."
13 My understanding is that a record of prior convictions in these terms was before the learned Magistrate when the time came to sentence the offender. It follows from the summary of events I have provided that, because the appellant was unrepresented, there was no detailed plea in mitigation presented to the court on her behalf and, apart from the brief oral pre-sentence report, there was comparatively little information provided to the court as to her personal circumstances or any circumstances leading up to the commission of the offence.
14 The learned Magistrate then proceeded to make these sentencing remarks:
"HER WORSHIP: May I have the record please? Yes, thank you for the report.
Stand up, please, Mrs Chinnery. This is your sixth offence for driving under suspension. You're well aware of the penalties. I really can't understand why you would put yourself and your liberty at risk by driving yet again. It is inappropriate for you to do so. You make a mockery of the court system when you don't obey the laws and what is prescribed for you.
I note that you were given - - and I really cannot understand why on your fifth offence, you were given a $200 fine with no disqualification. It really amazes me. And also that the Crown has not appealed that decision. So having really gotten away with a very minor penalty, you drive again shortly thereafter.
I do not believe a suspended period of imprisonment is the appropriate penalty. You have had many chances and you have breached the law. And you are sentenced to 4 months' imprisonment and your motor driver's licence is disqualified for a period of 12 months cumulative."
15 I understand that, as a consequence of these events, the appellant was taken to Bandyup Women's Prison on 17 July 2001 and was kept there for a period of five days. On 20 July 2001, she was released on bail pursuant to orders made by Miller J of the Supreme Court. The relevant orders included provision for a personal undertaking in the sum of $2,000 with a surety in the same amount. A condition of the grant of bail was that the appellant was to reside at 1 Edgar Way, Mount Pleasant, and to answer to bail at the Supreme Court in recognition that an application for leave to appeal would be brought before the court without delay.
16 On 21 September 2001, Scott J of the Supreme Court granted leave to appeal against the sentence imposed by the learned Magistrate. The leave to appeal was granted on the following grounds:
"1(a) That the sentence imposed by Her Worship Mrs D Bennett-Borlase was excessive in all the circumstances having regard to:
(i) the applicant was unrepresented when she appeared before the learned magistrate in the Rockingham Court of Petty Sessions on 17th July 2001;
(ii) in inquiring as to whether the applicant had had the benefit of legal advice and whether she wished to be legally represented, the learned magistrate failed to tell the applicant that she was facing a probable term of imprisonment;
(iii) the learned magistrate failed to inform the applicant at any stage during the proceedings on 17th July 2001 that she was facing a term of imprisonment in the light of her plea of guilty to the charge brought against her;
(iv) the learned sentencing magistrate failed to remand the applicant to a later date and to adjourn sentencing to enable the applicant to take legal advice as to her predicament;
(v) the learned sentencing magistrate failed to remand the applicant and adjourn the sentencing process to a later date to enable the preparation of a written pre-sentence report as to the applicant's circumstances and antecedents;
(vi) the learned sentencing magistrate failed to inquire of the applicant as to the circumstances of her driving on 27th June 2001;
(vii) the learned magistrate failed to make any inquiry as to the antecedents and circumstances of the applicant beyond ordering an oral pre-sentence report;
(viii) the learned magistrate heard only a very brief oral pre-sentence report and made no further inquiry of the applicant before proceeding to impose a term of imprisonment upon her;
(ix) the learned magistrate failed to have any or any proper regard to the recommendation for a suspended imprisonment made by the person who prepared the oral pre-sentence report and failed to inquire as to why that recommendation had been made;
(x) the learned magistrate had regard to the fact that the applicant appeared to have 'gotten away' with a $200.00 fine with no disqualification for her fifth offence of driving without an appropriate valid motor drivers licence, having regard to that factor without inquiry by her of the applicant as to the circumstances of the imposition of that penalty on the previous occasion."
17 Before addressing the various issues raised by the grounds of appeal, it will be useful to look at various principles and statutory provisions bearing upon the application before me.
18 Section 196 of the Justices Act 1902 provides that the court shall determine the appeal on the material before the court below. There is power to receive further evidence as the court thinks fit, especially with a view to clarifying what plea in mitigation or version of events the appellant wished to put before the court below in regard to a sentencing issue: Rowlands v Caporn [2001] WASCA 66. In such a case, a court must be astute to ensure that it has been given reliable information: R v Gallagher (1991) 23 NSWLR 220.
19 I digress briefly to note that, pursuant to the power just mentioned, I received further evidentiary materials upon the hearing of the appeal without objection from the Crown, including the affidavit of the appellant sworn 18 September 2001 and a report included in the appeal book of Dr Oleh Kay dated 13 September 2001. I will return to these further materials later.
20 Section 199 of the Justices Act provides that the court may dismiss the appeal, or set aside, quash or vary the decision or remit the case for hearing. However, the decided cases indicate that it is not enough in a sentencing matter that an appellate court might have exercised its discretion in a different manner. It must appear that some error has been made in exercising the discretion, such as acting upon a wrong principle, mistaking the facts or allowing extraneous or irrelevant matters to affect the decision made. The reasons of an appellate court must clearly find and identify errors: Dinsdale v The Queen [2000] HCA 54; (2000) 175 ALR 315 at 317.
21 Principles of sentencing in this State are reflected in s 6 of the Sentencing Act 1995 and related provisions. The sentence must be commensurate with the seriousness of the offence, this being determined by taking into account the statutory penalty, the relevant circumstances, and any aggravating and mitigating factors. It is clear from s 6(4) of the Act that a court must not impose a sentence of imprisonment unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it.
22 I note in passing that by s 16 of the Sentencing Act a court may adjourn the sentencing of an offender to obtain information about the offender and to allow a pre-sentence report to be prepared for the court. A plea of guilty is to be regarded as a mitigating factor.
23 The sentencing options for a natural person are set out in s 39 of the Act. The court must not use a particular option unless it is satisfied, having regard to the principles of sentencing mentioned earlier, that it is not appropriate to use any of the options listed before that option. A court need not refer explicitly to each option, for the conclusion that a specific sentencing option is appropriate carries the necessary inference of satisfaction that all other options are inappropriate: Shooter v R (1997) 97 A Crim R 581.
24 A court must first determine whether imprisonment is appropriate before addressing the question of whether the proposed term should be suspended. This was the sequence outlined by Kirby J in Dinsdale v The Queen (supra) which was later approved by this Court in Etrelezis v The Queen [2001] WASCA 327. It is wrong to assume, however, that the primary purpose of suspending the sentence is rehabilitative. The considerations that are relevant for the imposition of a term of imprisonment must be revisited in determining whether to suspend the term: cf R v Liddington (1997) 18 WAR 394.
25 There are many previously decided cases in which the point is made that the offence of driving while disqualified is a serious offence which ordinarily warrants the imposition of a term of imprisonment, particularly when the offence is a subsequent offence. These cases suggest that it will be very difficult to dispose of the matter otherwise than by a term of imprisonment, especially when the offence is the fifth offence. Stewart v Waghorn [1999] WASCA 150; Dragic v Burrows [2000] WASCA 385; Marshall v Spent [2000] WASCA 114. Nonetheless, it is apparent from the decided cases that it is open to the court to impose a sentence of suspended imprisonment if such an outcome is justified by the circumstances of the case: Bacich v Illich [2000] WASCA 133; Griekspoor v Scott [2000] WASCA 419.
26 In the recently decided case of Cross v Cook [2001] WASCA 242, Miller J reviewed the relevant authorities in the light of the decision of the High Court in Dinsdale v The Queen (supra) and questioned whether it was now correct to say that a suspended sentence may only be imposed in exceptional circumstances. He indicated that it would be preferable now to say that a suspended sentence of imprisonment is always open and only if it is decided that it is not appropriate to impose such a suspended sentence may the court impose a sentence of immediate imprisonment.
27 It appears from this survey of the sentencing principles bearing upon the present application that the object of the sentencing process is to impose a just penalty for a particular offence. The sentencing rules indicate that a balance must be struck between various considerations. The sentencing options, and especially the provisions concerning imprisonment and suspended imprisonment, allow for a degree of flexibility in the exercise of the discretionary sentencing power. The relevant principles assist the process of identifying omissions or any irrelevant considerations that may have been taken into account at the time the sentence was imposed, bearing in mind that an appeal court must not simply substitute its own opinion for that of the sentencing officer in the court below.
28 Counsel for the appellant placed some emphasis on the fact that the learned Magistrate had chosen to impose a term of imprisonment in circumstances where the appellant was unrepresented and had not been warned that a term of imprisonment was a very probable outcome of the proceedings once it became apparent that the appellant had a lengthy record of prior convictions for similar offences. He emphasised also that no thoroughly prepared plea in mitigation had been presented on the appellant's behalf and the very brief oral pre-sentence report provided the learned Magistrate with minimal information about the appellant and her antecedents. The learned Magistrate could have been more fully informed about these matters by remanding the appellant and adjourning her sentencing to a later date to allow for the preparation of a full pre-sentence report.
29 Counsel submitted that the learned Magistrate dealt with the appellant in a peremptory way, sentencing her to a term of imprisonment without taking the opportunity of fully informing herself as to the appellant's antecedents and without giving proper regard to the suggestion by the person who presented the oral pre-sentence report that the recommendation would be for a "possible suspended imprisonment".
30 Counsel for the appellant urged me to take account of and give weight to the matters referred to in the additional evidentiary materials presented to the court upon the hearing of the appeal.
31 According to the affidavit of the appellant sworn 18 September 2001, she is 33 years of age, having been born on 16 April 1968. She is married with a 3-year-old child, Brandon, who was born on 23 May 1998. She has also been the step-mother of Shontelle Chinnery, who is 19 years of age, having been born on 17 August 1982. The appellant has acted as step-mother since 1994.
32 The appellant went on to say in her affidavit that her father was killed in the line of duty as a police officer in 1971, as a consequence of which the appellant was raised by her grandparents. In 1984, after leaving school, she became a hairdresser and was eventually offered a franchise of a hair salon in Murray Street, Perth, in 1991 where she worked until 1992. She was then obliged to care for her grandparents for a period until she returned to work as a hairdresser. She said further that the years from 1992 until 1994 were extremely difficult, both emotionally and physically due to the pressures of family health issues and the death of her brother in a car accident in 1995.
33 Details are provided in her affidavit as to the circumstances giving rise to her various convictions for driving while under suspension. She said that on 20 February 2001 she was fined $200 for driving while under suspension and $100 for exceeding the speed limit. At the time, she was attending at her doctor's surgery every couple of weeks for counselling over a sexual assault which had occurred on 2 February 2001. The assault led to her being very confused and affected her ability to behave rationally. When she went to court, she was advised she could get her licence back because the cumulative suspensions had expired provided that she paid the money owing under fines enforcement. Unfortunately, she did not have the $400 required at the time to pay that and the previous fine still outstanding.
34 The appellant said that on the morning of 27 June 2001, she was contacted for a part-time position and was asked to attend an interview at 11 am. The appointment suited her because her son was booked in for child care locally and she could continue on from there to the interview by bus. As she was preparing herself for the interview, her son jumped off his bed and hit his head against the wall. She panicked at the sight of the blood and bundled her son into the car, arriving at the Rockingham Hospital shortly after the incident occurred. Her son was treated and she was told to observe him for 24 hours as he was suffering a concussion.
35 The appellant said further that before she left the hospital, she rang the prospective employer and explained the circumstances and asked if her son could accompany her to the interview and was told that would be acceptable. At that time, it was approximately 10.50 am and she was told that her appointment for 11 am was still open, providing she could get there on time as the interviewer had other appointments for the position. At the time, her financial circumstances were dire. Her husband had been unemployed since April and she had not worked since closing her business in March. When she left the Rockingham Hospital, she was pulled over for a random licence check on the road leading directly from the hospital and it was this that led to the infringement notice being delivered to her personally the following day.
36 She went to court on 17 July unrepresented, believing she would get another fine. She recalled being asked if she wanted legal advice, but was not aware of the ramifications or the possibility of going to gaol. When the community-based officer spoke to her about her history, she did not go into any great detail with her, as she was only with the appellant for about five minutes. She did, however, describe the events of the day in question. The appellant went on to say that if she had sufficient warning from the community officer or the Magistrate that she might be imprisoned, she would have asked for the matter to be stood down or adjourned so that she could get legal advice on her position.
37 The appellant then went on to describe some traumatic events that occurred during her brief period of imprisonment in Bandyup Women's Prison as from 17 July 2001. She expressed remorse for her conduct in driving without a licence and went on to say that she has now moved to Bibra Lake to be closer to her mother and father. Her husband has now secured full-time employment which will allow her to spend the time necessary to get well and to look after her son on a full-time basis.
38 The report of Dr Oleh Kay dated 13 September 2001 refers to consultations with the appellant, commencing on 6 August 2001 pursuant to a reference to him by her general practitioner, Dr Henderson of Booragoon. She gave a history of longstanding psychiatric symptoms, including episodes of severe anxiety and depression and was extremely distressed by her brief stay in Bandyup Prison. In Dr Oley Kay's opinion, the appellant's severe distress was largely precipitated by her imprisonment in Bandyup compounding a chronic psychiatric disorder. There was clear evidence of severe distress compatible with a major depressive disorder with secondary obsessive compulsive disorder in the context of longstanding psychiatric distress.
39 Dr Kay said that the appellant was continuing to consult him for psychiatric treatment and that he had commenced her on medication. In his opinion, her psychiatric disorder, mainly her obsessionality and poor impulse control, did materially contribute to her driving the motor vehicle without holding a current licence.
40 Counsel for the appellant placed some reliance upon two recently decided cases. In Marshall v Spent (supra), the appellant had pleaded guilty to charges of driving whilst under the influence of alcohol and whilst not being the holder of an appropriate driver's licence, he being legally disentitled to hold a driver's licence. He had pleaded guilty to almost the same combination of offences two months earlier and been fined a total of $1,000 with a suspension of his licence for a period of 12 months. The learned Magistrate, noting that the drink driving offence involved a blood alcohol level of 0.154 per cent, sentenced the appellant to 4 months' imprisonment. An appeal failed on the basis that there had been no error of principle and that the sentence was otherwise entirely appropriate in the circumstances.
41 In Bacich v Illich (supra) the appellant pleaded guilty to charges that he drove a motor vehicle while under suspension. He had previously been convicted for the same offences 12 months earlier and again six months earlier. He was therefore before the court on his fourth and fifth convictions at a time when he was serving a suspended sentence of imprisonment. In addition, he was a person who since the subject offences had been shown to have committed further offences two months later. These latter two offences could not have been taken into account as aggravating factors in the sentencing process.
42 It was held on appeal that the learned Magistrate was entitled to have regard to the further offences when considering the appellant's conduct subsequent to the offences with which she was dealing. In the presentation of an oral pre-sentence report, it was pointed out that the appellant had served 4 months of a suspended sentence without committing any offence. The appeal failed upon the basis that no error had been demonstrated and the sentence of 5 months' imprisonment was held to be appropriate.
43 Counsel for the appellant in the present case submitted that the circumstances of these two previously decided cases were different from those of the appellant. In each case, the appellant was represented by counsel. In such circumstances, the sentencing Magistrate had the added assurance that in imposing a sentence of imprisonment, he or she was doing so in circumstances where all relevant material had been put before her. In the case of the appellant in the present case, however, the learned Magistrate had imposed a sentence of imprisonment in circumstances where she had a paucity of material as to the appellant and her background, where the appellant was unrepresented and where the learned Magistrate failed to avail herself of the opportunity of being properly informed either by remanding the appellant so she could take legal advice or by remanding the appellant for the preparation of a written pre-sentence report, or both.
44 Had the learned Magistrate taken either or both options, she would, in all probability, have discovered that the appellant suffered from a major depressive disorder which was both chronic and severe and which, due to her resultant obsessionality and poor impulse control, materially contributed to her driving behaviour.
45 The learned Magistrate may also have discovered that the appellant might require, as a result of her major depressive disorder, long-term psychiatric treatment. It would have become apparent that for the appellant a term of immediate imprisonment would be particularly onerous because of the appellant's fragile psychological state. Because of the way in which the learned Magistrate dealt with the appellant's sentencing such information, which might have been available to her, was not available at the time of sentencing.
46 Counsel for the appellant acknowledged that in Police (SA) v Cadd [1997] SASC 6187; (1997) 69 SASR 150, the Full Court of the Supreme Court of South Australia considered that imprisonment was appropriate for the ordinary case of driving whilst disqualified and that the offence of driving while disqualified (or under suspension) is of such a type and tends to be committed in circumstances such that cases in which the circumstances of the offence support suspension are unusual. Doyle CJ pointed out that circumstances justifying suspension are unlikely to be found in routine or run-of-the-mill cases. He did consider that individual consideration must be given to all matters and a suspended sentence may, in exceptional circumstances, be imposed.
47 I have already observed, however, that the reasoning in Police (SA) v Cadd must now be assessed in the light of the decision of the High Court in Dinsdale v The Queen (supra), as Miller J noted in Cross v Cook (supra). One should now proceed on the basis that a suspended sentence of imprisonment is always open and only if it is decided that it is not appropriate to impose such a suspended sentence may the court impose a sentence of immediate imprisonment. Counsel for the appellant submitted that, when sentencing the appellant, no proper regard had been paid to the question of a suspended sentence, notwithstanding that a recommendation to that effect had been made by the person who prepared the very brief oral pre-sentence report.
48 In the case of Cross v Cook (supra), where the appellant had been sentenced in the Bunbury Court of Petty Sessions to a term of 4 months' imprisonment, Miller J, on appeal, concluded that the learned Magistrate did not have before him all of the material that had been put before the court on appeal. That material included a letter written by the appellant's employer which appeared to be by way of a character reference, very supportive of the appellant. The appellant in that case had been involved in a motor vehicle accident and charged with a drink driving offence. Miller J acknowledged that the need for deterrent sentences in relation to repeated driving under disqualification or suspension of licence is clear. Nonetheless, he went on to hold that, in view of the fact that the court did not have before it the letter written by the appellant's employer and the fact that the appellant had already served 1 month of imprisonment, led to a conclusion that there were reasons sufficient to justify a review of the decision of the learned Magistrate within the meaning of s 186(1)(b) of the Justices Act.
49 In the circumstances Miller J was prepared to allow the appeal and to substitute for the sentence of imprisonment to be served immediately a suspended sentence operative from 26 June 2001, being the date upon which the original sentence of 4 months' imprisonment to be served immediately was imposed. The learned Judge allowed the appeal, quashed the sentence of finite imprisonment to be served immediately by the appellant, and in lieu thereof, suspended the 4 months' sentence of imprisonment for a period of 12 months, with effect from 26 June 2001 being the date upon which the original sentence had been imposed.
50 Counsel for the respondent relied upon the sentencing principles and decided cases which suggested that the offence of driving whilst disqualified is a serious offence which ordinarily warrants the imposition of a term of imprisonment, particularly when the offence is a subsequent offence.
51 Counsel submitted that, in the present case, the appellant appeared on her sixth charge of driving whilst under suspension. In addition, she had committed two other offences of driving without a driver's licence, four drink driving offences, and a number of other traffic offences that attracted a demerit point suspension in 1991.
52 Counsel submitted that none of the subgrounds of appeal recited in pars 1(a)(i) to (x) of the order for leave to appeal could be regarded as relevant to the principal ground that the sentence imposed by the learned Magistrate was excessive in all the circumstances. For example, it is not relevant to whether the sentence was excessive whether the appellant was represented or not, nor is the procedure followed by the learned Magistrate in dealing with the appellant relevant. Counsel also took issue with some of the assertions contained in the grounds of appeal, having regard to the transcript of the proceedings.
53 Counsel for the respondent made various submissions directed to the procedure adopted by the learned Magistrate. Counsel pointed out that the appellant had been given an opportunity to be represented, with reference being made in that regard to a passage in the transcript shortly before the charge was put to the appellant in which the learned Magistrate asked whether the appellant wished to seek legal advice, but was given a negative answer.
54 Counsel for the respondent pointed out also that, prior to remanding the matter for an oral pre-sentence report, the learned Magistrate informed the appellant of the possibility of imprisonment. It appeared from the appellant's own affidavit that at a later stage the community officer informed the appellant she was facing imprisonment. Counsel went on to say that the learned Magistrate had made inquiries of the appellant as to the circumstances of the particular incident. The appellant advised the learned Magistrate that she was attending a job interview and that, in relation to her most recent relevant conviction she had driven because she had had to go to the hospital. The learned Magistrate questioned the appellant as to whether she had been made aware of the penalties in the past and noted in giving reasons for sentence that the appellant had answered in the affirmative.
55 Counsel for the respondent said further that the oral pre-sentence report dealt with the appellant's relevant antecedents, family circumstances, financial position and physical and mental health. The learned Magistrate had therefore obtained, as far as she was aware, all of the necessary relevant information required to sentence the appellant. The learned Magistrate noted that it was the appellant's sixth offence of driving under suspension and was correct in observing that the penalty imposed for the most recent offence was contrary to s 49 of the Road Traffic Act. The learned Magistrate clearly considered the option of the imposition of a suspended term of imprisonment. Whether or not the appellant had been warned on previous occasions of the possibility of imprisonment did not detract from the fact that the appellant had continued to ignore the law and to drive when she perceived the need to do so.
56 Counsel for the respondent submitted that, on the material as presented to the learned Magistrate at the hearing, a term of imprisonment was appropriate. Although there were no circumstances of aggravation, the explanation offered to the learned Magistrate disclosed a deliberate decision on the part of the appellant to drive her vehicle for her own convenience. The appellant had only just recently committed an offence of driving under suspension (albeit that the appellant explained that that offence was motivated by emergency). These facts did not necessarily justify the suspension of the term of imprisonment. Thus, the sentence imposed could not be said to have been manifestly excessive or defective by reason of an error of law.
57 Counsel for the respondent conceded that Miller J's decision in Cross v Cook (supra) indicated that suspension of imprisonment should be considered in every case, rather than simply in exceptional cases. However, it could not be said that the learned Magistrate had erred in the exercise of her discretion in that regard. She did not state that suspended imprisonment was only available in exceptional circumstances. Rather, it appeared that the learned Magistrate had regard to the number of convictions for driving under suspension, a relatively recent prior conviction, the excuse offered by the appellant, the appellant's traffic record in general and the appellant's circumstances. In these circumstances, the sentence imposed could not be regarded as manifestly excessive.
58 Counsel for the respondent acknowledged that material relating to the appellant's medical condition was potentially relevant to the exercise of the discretion to suspend a term of imprisonment. Counsel submitted, however, that simply because additional material could have been presented and was not so presented to the sentencing officer, does not of itself necessarily warrant interference by an appellate court in the sentence imposed.
59 In weighing up the submissions advanced by counsel for the respective parties, I am obliged to note at the outset that the essential ground of appeal is that the sentence imposed was manifestly excessive in all the circumstances of the case. I was informed by counsel for the appellant that the various subparagraphs of the relevant grounds should be regarded as circumstances to be taken into account in addressing the principal issue, rather than being regarded as separate grounds or as particulars. Having regard to the sentencing principles I mentioned earlier, I proceed from the premise that it is not enough for me to conclude that I might have exercised the sentencing discretion in a different manner. The appellant must demonstrate that some error was made in the way in which the learned Magistrate exercised her discretion, such as acting upon a wrong principle, mistaking the facts or allowing extraneous or irrelevant matters to affect the decision made.
60 I accept having regard to the previously decided cases that in the case of a sixth conviction for driving whilst under conviction that it was undoubtedly open to the learned Magistrate to impose a term of 4 months' immediate imprisonment in the circumstances of the present case.
61 Such a view is consistent with the reasoning of the Courts in Police (SA) v Cadd (supra), Marshall v Spent (supra) and Bacich v Illich (supra). I am conscious, however, that the two latter cases can be and probably should be distinguished from the circumstances of the present case in that offences involving alcohol were involved in Marshall v Spent (supra). In Bacich v Illich (supra), the sentence in question related to an offence committed while the offender was subject to a term of suspended imprisonment. I am conscious also, as Miller J noted in Cross v Cook (supra), that since the decision of the High Court in Dinsdale v The Queen (supra) a sentencing officer must keep steadily in mind that the option of suspended imprisonment is always open and all the relevant factors including mitigating factors such as a plea of guilty must be revisited before a term of immediate imprisonment is imposed.
62 The learned Magistrate in the present case referred expressly to the possibility of suspended imprisonment this being an option mentioned by the author of the oral pre-sentence report, and thus it cannot be said that this option was not considered at all. Nonetheless, in the absence of any fully argued plea in mitigation, there is little evidence in the transcript that the learned Magistrate gave due weight to the precept reflected in s 6(4) of the Sentencing Act that a sentence of imprisonment should be regarded as an option of last resort and the requirements articulated in Dinsdale v The Queen (supra) that considerations relevant to the imposition of a term of imprisonment must be revisited in deciding whether to suspend the term. The learned Magistrate simply said:
"I do not believe a suspended period of imprisonment is the appropriate penalty."
"You have had many chances and you have breached the law."
64 To my mind, it is not clear whether the learned Magistrate, in adopting such a stance, was putting the emphasis upon the seriousness of the offence or upon the fact that the offender had arguably been treated too leniently on previous occasions, bearing in mind especially that a comparatively small fine and no disqualification had been imposed for the immediately preceding offence.
65 It is clear, however, even if it be thought that the learned Magistrate did rely principally upon the seriousness of the offence and the need for deterrence as a basis of refusing to suspend the term, that no attempt was made to strike a balance between considerations of this kind and various mitigating factors such as the plea of guilty and the likely impact of a term of immediate imprisonment upon a person in the appellant's situation, that is to say, a young mother on medication with a three year old child at home. Some additional inquiries would have led to further information being brought before the Court directed to these factors.
66 When the matter is viewed in this light it seems to me that the learned Magistrate can be said to have fallen into error. The sentence imposed was excessive in that she did not give proper weight to the full range of matters bearing upon the question of whether a term of imprisonment that might otherwise be imposed owing to the seriousness of the offence and the need for deterrence should be suspended in the circumstances of this particular case.
67 Accordingly, I am persuaded that the appeal should be allowed and decision of the learned Magistrate should be quashed.
68 When I turn to the question of whether any further orders should be made, I have to say that I am influenced by the reasoning of Miller J in Cross v Cook (supra). I take account of the fact that the appellant has served 5 days of imprisonment at Bandyup and there is evidentiary material before me that that had a traumatic effect. This short period of imprisonment can be regarded as a severe punishment and any further imprisonment is likely to be especially onerous having regard to the appellant's fragile psychological state. I take account also of the mitigating factors referred to earlier including the plea of guilty and the appellant's responsibility for a young child. I also take account of decisions such as Bacich v Illich (supra) in which it was said that an offender may be given a last chance by means of a suspended sentence.
69 Accordingly, against this background, I will allow the appeal, quash the sentence of finite imprisonment for 4 months to be served immediately, and in lieu thereof, suspend the 4-month sentence of imprisonment for a period of 12 months, with effect from 17 July 2001 being the date upon which the original sentence was imposed. The appellant's motor driver's licence is to be disqualified for a period of 12 months cumulative as provided for by the original sentence. I will hear from the parties as to whether any further orders are required.
# Chinnery
Hansen \[2001\] WASCA 349
(1936) 55 CLR 499
(1999) 195 CLR 665
(1979) 46 FLR 386
(2000) 175 ALR 315
(1997) 18 WAR 394
(1991) 23 NSWLR 220
(1997) 69 SASR 150